A Glimpse at the Draconian Future of Copyright Enforcement?

By EFF Legal Analysis by Corynne McSherry

Over the past few days, the U.S. Justice Department, the Department of Homeland Security and nine U.S. Attorneys’ Offices seized 82 domain names of websites they claim were engaged in the sale and distribution of counterfeit goods and illegal copyrighted works.

Setting aside the due process concerns inherent in seizing any website without notice or appropriate recourse for the owner, it appears that the “raid” has swept up several sites that are hardly in the business of willful copyright infringement.

For example, the the list of targets included OnSmash.com and RapGodfathers.com. Both sites are dedicated to promoting rap and hiphop, showcasing new artists and helping fans connect and share information about the music they love. According to the owners, they regularly and expeditiously process copyright infringement notices and take down links as appropriate. Indeed, OnSmash says the labels themselves are often the source of the links OnSmash makes available. In other words, they try to play by the rules. Moreover, the sites are not simply collections of links; rather, they provide a wide array of information and forums for speech, all of which was rendered inaccessible by the seizure. 

This type of seizure is not unprecedented, but we haven’t seen it happen on such a broad scale before. This kind of mass action raises at least three concerns:

First, these seizures may be just a short preview of the kind of overreaching enforcement we’ll see if the Congress passes the Combating Online Infringement and Counterfeits Act (COICA). That bill, which was approved by the Senate Judiciary Committee on Nov 18, gives the government dramatic new copyright enforcement powers, in particular the ability to make entire websites disappear from the Internet if infringement, or even links to infringement, are deemed to be “central” to the purpose of the site. Rather than just targeting files that actually infringe copyright law, COICA’s “nuclear-option” design has the government blacklisting entire sites out of the domain name system — a reckless scheme that will undermine global Internet infrastructure and censor legitimate online speech. As we’ve noted, one of the most pernicious effects of COICA is likely to be just what we’ve seen here: the takedown of legitimate speech.

Second, the seizures also show why this kind of enforcement doesn’t work; seized sites were available at other domain names within hours. If the United States government increases interference in critical DNS infrastructure to police alleged copyright infringement, it is very likely that a large percentage of the Internet will shift to alternative DNS mechanisms that are located outside the US. This will cause numerous problems — including new network security issues, as a large percentage of the population moves to encrypted offshore DNS to escape the censoring effects of the procedures outlined in COICA. Presumably the DOJ and the DHS should be committed to improving network security — not undermining it.

Third, it’s hard to believe that this kind of action is the best use of the Department of Homeland Security’s resources. What investigations didn’t occur while the DHS spent its time and energy pursuing the agenda of large media companies? Moreover, it’s highly unlikely that this publicity stunt will really help creators get compensated. The best way to help artists of every stripe get compensated for their work is to make sure that there is a thriving marketplace of innovative digital businesses to pay them — business like OnSmash, which is committed to promoting new and unheralded artists.

We hope the legislators considering COICA will take a hard look at these issues before they vote. In the meantime, government officials should take an equally hard look at their enforcement priorities before they spend more of our tax dollars chasing websites.

Related Issues: No Downtime for Free Speech Campaign, The COICA Internet Censorship and Copyright Bill